On 5-6 November 2020, reputable arbitration practitioners joined together for the 9th Asia Pacific ADR Conference and shared their experiences and insights on the latest developments in the arbitration landscape. Due to the ongoing COVID-19 pandemic, the annual conference took place virtually. It successfully attracted approximately 15,000 participants across 50 countries. The event was co-hosted…

Much has been written – on this page and elsewhere – about the future viability of investor-state arbitration based on intra-EU BITs in the aftermath of the CJEU’s Achmea decision. In the authors’ view, the May 2020 Termination Agreement concluded between 23 of the 27 EU Member States with the intention to terminate existing intra-EU…

The Institute for Transnational Arbitration (“ITA”) hosted a four-part webinar discussing the Draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement, between 21-25 September 2020. Each part addressed specific practical considerations raised by the matters addressed in the Draft Code of Conduct: issue conflict, double hatting, repeat appointments, and implementation and enforcement of the…

Ever looked up at the night sky and wondered…what is the regulatory and dispute settlement regime that governs commercial activities out there? Well, it might be about time you did. This post celebrates October’s World Space Week by looking at the developments in the legal framework regulating commercial space activities and how the investor-state dispute…

Many see the Pan-African Investment Code (PAIC), a model instrument adopted by the African Union (AU) in 2015, as the first step toward the ‘africanization’ of international investment law. While several national and regional instruments on foreign investments had been adopted by African States and Regional Economic Communities (RECs) prior to the PAIC, the latter’s…

Arbitrating investment disputes has its peculiarities stemming out of the nature of the dispute, as well as from the parties involved, which become relevant when assessing the feasibility of implementing expedited arbitration provisions. ICSID Arbitration Rules and UNCITRAL Arbitration Rules, the main arbitration rules currently used for investment arbitration proceedings, are in the process of…

Arbitration has been the default dispute resolution mechanism in the investor-state dispute settlement (ISDS) regime for a long time. Provisions for third-party procedures other than arbitration have been relatively rare in older generation bilateral investment treaties (BITs). Even where those have provided in advance for the option of ICSID (Convention or Additional Facility) Conciliation Rules,…

The Singapore International Arbitration Centre (“SIAC”) hosted its Congress on 2 September 2020.  For the first time, the Congress was held virtually.  The Chairman of the Board of Directors of SIAC, Mr Davinder Singh, SC, in his welcome address thanked over 1,000 attendees for attending virtually from all over the world despite time zone differences. …

Today, there is no universal code of conduct, no single professional regulatory organization or global certification process in the field of investor-state dispute settlement (“ISDS”). Instead, the field of international arbitration is didactically governed by self-policing, episodic, and distinct ad hoc measures serving to collectively safeguard the integrity of the international arbitration process. On the…

Denial of benefits clauses (DoB) have gained considerable traction in the past prolific years of Investor-State Dispute Settlement (ISDS), and more specifically, with the growing number of Energy Charter Treaty (ECT) arbitrations. UNCTAD’s Investment Policy Hub still lists a considerably small number of international investment agreements (IIAs) providing for DoB: little above 200 which would…

The Energy Charter Treaty (‘ECT’) opened for signature in 1994, entered into force in 1998, and now boasts some 50 member States. The ECT has since given rise to some 130 investor-State arbitrations, making it “the most frequently invoked international investment agreement”. This high use, coupled with a perception that the ECT is frequently invoked…

The Changing Landscape of the ISDS System The ongoing global discussions on the reform of the Investor-State Dispute Settlement (ISDS) system have been broad in scope and covered a wide range of concerns. As previously documented on this blog, the governments participating in the UNCITRAL Working Group III – ISDS Reform (WG III) have determined…

On 22 March 2019, the Dutch Government released the text of the new model Netherlands BIT. Its idealism has been applauded: the new model prioritizes gender and regional diversity as well as the United Nations sustainability goals. Yet, what would the effect be of some of the model’s provisions on Foreign Direct Investment (‘FDI’)? For…

On January 24, 2020, Peru enacted the Emergency Decree No. 020-2020 (the “Decree”), published in Peru’s Official Gazette, El Peruano. The Decree amends Peru’s Legislative Decree No. 1071 (the “Arbitration Law”), in force since 2008, to provide protections to any arbitration in which the Peruvian Government is involved.  The Decree’s changes are, in fact, protectionist…

On May 1, 2020, the Secretariats of ICSID and UNCITRAL released the first draft of the Code of Conduct for Adjudicators in Investor-State Dispute Settlement (ISDS). I had the privilege of working extensively on the drafting of the Code as a Scholar in Residence at ICSID, and I think this is an important development in…

Last month, ICSID published a further Working Paper (WP4) linked to its ongoing reform process, by which it is considering a series of amendments to the ICSID and ICSID Additional Facility Rules. The Working Paper is the fourth in a series of working papers, preceded by Working Papers 1 (August 2018), 2 (March 2019), and…

Readers of the Kluwer Arbitration Blog will be very familiar with the drama surrounding the European Union’s (EU) pushback against intra-EU investor-state dispute settlement (ISDS) as contained in intra-EU bilateral investment treaties (BITs) and in particular the “clap of thunder” Achmea (C-284/16) judgment (on this blog see, e.g. here). According to the Court of Justice…

As UNCITRAL Working Group III is proceeding to address concrete proposals to reform treaty-based investor-state arbitration, the future of investor-state dispute settlement (ISDS) is at a historic juncture. Reform proposals include both incremental changes to investor-state arbitration and proposals for further institutionalization, such as the call of the European Union (EU) to establish a Multilateral…

ISDS is a fragmented field, consisting of a few thousand bilateral investment treaties (“BITs”) and treaties with investment chapters – such as the Energy Charter Treaty (“ECT”) or the North American Free Trade Agreement (“NAFTA”). These instruments that regulate foreign investment are often similar but are not the same. Yet, even where different bilateral relationships…

Introduction   In a 2015 publication Investment Policies and Bilateral Investment Treaties in Africa: Implications for Regional Integration, the United Nations Economic Commission for Africa opined that for countries in Africa: “[o]pportunities for signing BITs with non-African partners have largely been exhausted because new southern partners such as China and India prefer other modalities for…

The recently leaked treaty for the termination of intra-EU BITs can be seen as the culmination of an ongoing effort by the European Commission to discourage investment arbitration between Member States, reflecting, in the eyes of many, a tension between public international law and EU law. In spite of this, and even after the Court…

The 98th Annual Meeting of the American Branch of the International Law Association (“ABILA”), known as ABILA’s International Law Weekend (“ILW”), took place in New York City on 10 – 12 October 2019. ILW, ABILA’s premiere annual event, featured 35 panels covering a broad range of topics of international law. This year, ILW had a…

The growing public interest in investment treaties and investor-State dispute settlement has prompted an increasing number of States to open to public view aspects of investment treaty negotiations. During the negotiation of the Transatlantic Trade and Investment Partnership (‘TTIP’), for example, both the European Union and the United States sought to ‘maximise’ transparency in the…

Introduction The United States, Mexico, and Canada renegotiated the 25-year-old North American Free Trade Agreement (NAFTA) in 2018. As a result of these renegotiations, the parties agreed on new terms to formulate “NAFTA 2.0” or the U.S.-Mexico-Canada Agreement (USMCA) in the United States, the CUSMA in Canada and, the T-MEC in Mexico. The USMCA aims…